Washington Post: N.C. to pay $885,000 to animal rights groups for undercover-video suit

This article features Government Accountability Project and was originally published here.

North Carolina spent eight years arguing that it was constitutional to ban employees from recording undercover video at work. After losing in court to animal rights and food safety groups who have argued the videos are key to exposing poor business practices or wrongdoing, the state has agreed to pay their $885,000 legal bills.
Other states have had to pay similar settlements over such “ag-gag laws,” pushed by the agricultural industry in response to exposés from inside factory farms. But the settlement in North Carolina is four or five times larger than others, reflecting a long legal battle that ended when the Supreme Court declined to take on the case last fall.
Groups that challenged the law said in a statement that North Carolina’s payment should “serve as a serious warning to other states.”
“Defend [the agriculture industry’s] interests to the detriment of the health, safety, and civil liberties of your citizens, and you’ll be choosing to do so at the taxpayers’ significant expense,” the statement from organizations that included People for the Ethical Treatment of Animals, the Government Accountability Project and the American Society for the Prevention of Cruelty to Animals.
A spokeswoman for North Carolina Attorney General Josh Stein, a Democrat now running for governor, declined to comment.
North Carolina’s law was different than ones struck down in other states, which state officials argued made it constitutional. The law that banned secret filming, though backed by the agriculture industry, covered all employers. And instead of making undercover filming a crime, it allowed companies to sue employees who did it. But a federal district judge and the U.S. Court of Appeals for the Fourth Circuit concluded that it was nevertheless an unconstitutional restriction of free expression.
“North Carolina first offers that undercover investigations in nonpublic areas, as a class, constitute unprotected speech,” wrote the court, one of the more liberal in the nation. “That is a dangerous proposition that would wipe the Constitution’s most treasured protections from large tranches of our daily lives. Fortunately, it has no basis in law.”
While businesses don’t have to let people engage in filming or other speech on their property, the court ruled, the government can’t step in and make that conduct illegal.
A Trump appointee dissented from that appellate ruling, and North Carolina tried to get the conservative U.S. Supreme Court to intervene and rescue its law. National agricultural lobbying groups supported North Carolina, saying the lower courts had “green-lit … sabotage” of farms by “animal extremist groups.” So did 16 other states, saying they want to “protect employers involved in animal agricultural operations.”
The Supreme Court rejected the petition without comment.
Similar laws in four other states have been deemed unconstitutional, while a half-dozen more remain on the books. Other appellate courts have agreed with the Fourth Circuit — which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina — that a state can’t decide when and where recording is legal. But some appellate courts have blessed bills that took on undercover investigations from another angle, making it a crime to use deception to get onto animal farms as either employees or visitors.
The case was litigated by attorneys from the nonprofit Public Justice, which has since spun off its agriculture-related work into a group called FarmStand. It was backed by animal rights groups as well as free-speech and media organizations.
The law also banned any action that “substantially interferes with ownership or possession” of business property. The Fourth Circuit noted that this part of the law could allow companies to sue workers for “even mere reporting of a conversation had with other employees — to a newspaper, a union, a state agency — if the reporting leads the State to shut down the facility.”
Stein’s office did not defend that provision at the Supreme Court level. The North Carolina Farm Bureau, a nonprofit lobbying group for the agriculture industry, did.